Burow v The Queen

Case [2015] ACTCA 61


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Burow v The Queen

Citation:

[2015] ACTCA 61

Hearing Date:

11 August 2015

DecisionDate:

16 December 2015

Before:

Penfold, Gilmour JJ and Walmsley AJ

Decision:

The appeal is dismissed.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Particular Offences – driving with a prescribed concentration of alcohol in blood or breath – s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – where the sentencing Magistrate declined to reduce the automatic disqualification period.

PRACTICE AND PROCEDURE – Appeal – jurisdiction – where Supreme Court ruled it had no jurisdiction to hear the appeal – jurisdiction of the Supreme Court to hear an appeal – whether whether order “imposed” by the Magistrates Court – s 208(1)(d) of the Magistrates Court Act 1930 (ACT) – meaning of “order to disqualify” – s 208(1)(g) of the Magistrates Court Act 1930 (ACT) – jurisdiction under s 20 of the Supreme Court Act 1933 (ACT).

Legislation Cited:

Court of Petty Sessions Ordinance 1930-1971 (ACT), s 208A(1)
Crimes Legislation Amendment Act 2012 (No 2) (ACT)  
Human Rights Act 2004 (ACT), s 22(4)
Legislation Act 2001 (ACT), ss 138, 139, 141, 142
Magistrates Court Act 1930 (ACT), ss 207, 207(1), 207(2), 208, 208(1)(d), 208(1)(g), 219B, 219B(1)(a), 244
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 19(1), 26, 32
Road Transport (General) Act 1999 (ACT), s 61B
Supreme Court Act 1933 (ACT), ss 11, 20, 29(1)(a)

Cases Cited:

ACT DPP v McDowall [2002] ACTSC 72

Attorney-General’s Application (No 3 of 2002) (2004) 61 NSWLR 305
Barac v Thexton [2008] ACTSC 137
Bloxham v Wyte (2013) 278 FLR 365
Evans v Shiels (2004) 185 FLR 1
FAI Properties Pty Limited v Apostolopoulos [2002] ACTSC 58
FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82
Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503
Kelly v Apps (2000) 98 FCR 101
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Loughton v Smorhun (2014) 67 MVR 157
Nelson v Heil [2013] ACTSC 11
Project Blue Sky v ABA [1998] 194 CLR 355
R v Forsyth (2013) 281 FLR 62
Rich v ASIC (2004) 220 CLR 129
Rose v Snape [2000] ACTSC 115
Scott v Wynants (2009) 4 ACTLR 13
Sleiman v Murray (2009) 231 FLR 224
Spurr v Fishpool (1972) 20 FLR 174
Travini v Starczewski (2009) 169 ACTR 1
Walsh v Law Society of New South Wales (1999) 198 CLR 73

Westbrook v The Queen (Unreported, Australian Capital Territory Supreme Court, Crispin J, 18 July 2000)

Parties:

Luke Burow (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr P Edmonds (Appellant)

Mr J White SC (Respondent)

Solicitors

Paul Edmonds & Associates (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 11 of 2015

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Refshauge J

Date of Decision:         20 February 2015

Case Title:  Burow v Hoyer

Citation: [2015] ACTSC 21

THE COURT

Background

  1. On 28 November 2013 the appellant…

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AGLC
Burow v The Queen [2015] ACTCA 61
Case
[2015] ACTCA 61
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision by a sentencing Magistrate in the Australian Capital Territory who declined to reduce the automatic disqualification period for a driver convicted of driving with a prescribed concentration of alcohol in blood or breath, contrary to s 19 of the *Road Transport (Alcohol and Drugs) Act 1977* (ACT). The appellant, Burow, sought to appeal this decision.

The central legal issues before the Supreme Court of the Australian Capital Territory were whether the Supreme Court had jurisdiction to hear the appeal. This involved interpreting the meaning of an "order to disqualify" under s 208(1)(d) of the *Magistrates Court Act 1930* (ACT) and whether the Magistrate's refusal to reduce the automatic disqualification period constituted such an order. The Court also considered its appellate jurisdiction under s 20 of the *Supreme Court Act 1933* (ACT).

The Court reasoned that the automatic disqualification period imposed by s 19 of the *Road Transport (Alcohol and Drugs) Act 1977* (ACT) was a statutory consequence of the conviction, not an order made by the Magistrate in the exercise of their discretion. Therefore, the Magistrate's refusal to reduce this period did not amount to an "order to disqualify" within the meaning of s 208(1)(d) of the *Magistrates Court Act 1930* (ACT). Consequently, the Supreme Court held that it lacked jurisdiction to entertain the appeal.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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